State v. Knizek

• Decision Date: 26 November 1937
• Docket Number: 26797.
• Citation: 192 Wash. 351,73 P.2d 731
• Parties: STATE v. KNIZEK.
• Court: Washington Supreme Court

73 P.2d 731

192 Wash. 351

STATE v. KNIZEK.

No. 26797.

Supreme Court of Washington

November 26, 1937

Department 1.

Appeal from Superior Court, Grays Harbor County; Howard J. Atwell Judge.

H. R Knizek was convicted of burglary in the second degree, and he appeals.

Affirmed.

Lynwood W. Fix and Edward A. Clifford, both of Seattle, for appellant.

Paul O Manley, Pros. Atty., of Montesano, for the State.

STEINERT Chief Justice.

Defendant was convicted by a jury upon an information charging him with the crime of burglary in the second degree. Motions in arrest of judgment and for a new trial were denied, and judgment of conviction and sentence was entered, from which this appeal was taken.

Under his several assignments of error, appellant contends that the court erred in two respects: (1) In permitting the State to amend the information after all the evidence was in, and (2) in denying appellant's motions in arrest of judgment and for a new trial.

The information charged: 'That he, the said defendant, H. R Knizek, in the County of Grays Harbor, State of Washington, on or about the 11th day of June, 1936, then and there being, did then and there wilfully, unlawfully and feloniously, under circumstances not amounting to burglary in the first degree, break and enter a certain warehouse, belonging to the Union Oil Company of California, and located on the Olympic Highway, approximately two miles east of Elma, Washington, said building being one wherein personal property was kept for use, sale or deposit.'

The information as drawn was based on Rem.Rev.Stat. § 2579, defining burglary in the second degree, but it did not allege that the act was done 'with intent to commit some crime therein,' as provided in the statute.

So far as the record discloses, no attack was made upon the information by preliminary motion or demurrer. In fact, no one was aware of the defect in the pleading until the trial judge discovered it, after he had entered upon the reading of his instructions to the jury. When the court called counsel's attention to the matter, the prosecuting attorney, in the absence of the jury, moved that the information be amended to include the words 'with intent to commit some crime therein.' The court granted the motion, but offered appellant the alternative of moving for continuance or putting in additional evidence. The offer was not accepted. Appellant, nevertheless, now contends, in his first assignment of error, that the action of the court in permitting the amendment constituted reversible error.

The gist of the crime of burglary, as defined by the statute, is the breaking and entering of any one of certain specified building with intent to commit a crime therein. State v. Beeman, 51 Wash. 557, 99 P. 756; State v. Trombley, 132 Wash. 514, 232 P. 326. However, by the express provision of Rem.Rev.Stat. § 2580, one who unlawfully breaks and enters any of such buildings shall be deemed to have done so with intent to commit a crime therein, unless such unlawful breaking and entering 'shall be explained by testimony satisfactory to the jury to have been made without criminal intent.'

In addition to the statutory presumption, there was sufficient evidence in this case, admitted without objection, to warrant the jury in finding that appellant, after breaking and entering the building, had stolen property therefrom.

A motion in arrest of judgment serves the purpose of a demurrer, even after trial and verdict ( State v Dalzell, 135 Wash. 621, 238 P. 635), and also the purpose of testing the sufficiency of the evidence to take the case to the jury ( State v. Burnett, 157 Wash. 288, 288 P. 918). At the time of the decision in the Dalzell Case, supra, the rule in this State was that a defective information or indictment could not be cured by testimony. At the time of the decision in the Burnett Case, supra, that rule had been changed by Rule of Practice IX (Rem.Rev.Stat. § 308-9), which this court adopted under express legislative authority. Rule IX provides, in part, as follows: '2. At any time Before or during trial the court may permit the amendment of an information and permit proof to be offered in support thereof, and if the defendant shows to the satisfaction of the court that he would thereby be misled, the court shall make such order as shall secure to the defendant full opportunity to defend. An information shall be considered amended to conform to the evidence introduced without objection in support of the crime substantially charged therein, unless the defendant would thereby be prejudiced in a substantial right.'...